Testamentary Succession: Wills and rules of Evidence I.Introduction This research paper is an opinion-based backed up by the pertinent law, data and opinion of legal authority regarding the subject matter. This would be a good introduction to the subject of succession which I have yet to take up in my study of law. As the reader goes through in reading his paper, they would discover this to be a general discussion of the Testamentary Succession of this country and presenting the respective provisions of the New Civil Code and the revised rules of court. The discussion in this paper is limited to wills, its form and execution, probate, conflict of laws rules, its revocation and current legal developments regarding the constantly moving mechanisms of our justice system. Basically, it talks about the law and the rules of evidence a student basically needs to know to understand the subject matter better when it comes to practical application. The purpose is to scrutinize the weaknesses and inadequacy of the law and rules of evidence in the execution and presentation of wills in court to be able to formulate recommendations on possible amendments to the provisions of the law.

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This research paper, however, is limited with only my shallow knowledge of the law and limited research materials and I will try to explain thoroughly my topic to the best of my ability. I give my opinion per topic in the outline and then give a general conclusion later on. II.Testamentary Succession Art. 774 of the New Civil Code defines succession as a mode of acqusition by virtue of which the property, rights and obligations to the extent of the value of the inheritance of a person are transmitted through his death to another or others either by his will or by operation of law. In its technical signification, succession is restricted to succession mortis cause or after death.1 It is obvious in the definition of the law that in the Philippines, there are two kinds of succession, Testamentary and Intestate Succession. Testamentary Succession is the focus of this research which is a succession that is liquidated according to the deceased wishes as stated in a legally valid will.2 It is a specie of conveyance whereby a person is permitted with the formalities prescribed by law to dispose of his property after his death with more or less freedom but limited to a certain degree by law.3 The difference between the terms Inheritance and

Succession is that, Inheritance is the property or right acquired. Succession is the manner by virtue of which property or right is

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acquired.4 In case of doubt, testamentary succession is preferred to legal or intestate succession.5 A. Wills The legal definition of wills is enshrined in the New Civil Code which says, A will is an act whereby a person is permitted with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death. 6 In my own opinion, wills are basically the expression of the desire of the decedent as to how and whom to leave the fruits of his lifes work and labor when the time comes he will proceed to the afterlife. The essential elements and characteristics of a will are: that the making of a will is a statutory right, a unilateral act (no acceptance necessary fro the transferee), it is a solemn/formal act, it has to have animus testandi (intent), the testator must have the capacity to make a will, it is strictly a personal act in all matters that are essential, it is effective mortis cause, ambulatory in nature, free from vitiation of consent, it is done individually, and disposes of the testators estate.7 It has been held that oral conveyance of succession rights is effective in the Philippines as a common practice. The consistent jurisprudence of this country, despite express codal provisions, has

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recognized oral contracts as valid efficacious to about partition of a decedents estate among the heirs provided that the partition does not affect the interest of third persons.8 If the testator is a deaf or a deaf-mute, he must personally read the will, if he is able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof.9 The law however is silent as to whether or not, in the case of an illiterate testator, it should be stated in the attestation that the will was read to him. In a case decided by the Supreme Court, it was laid down that it need not be stated in the attestation clause and the absence of such is not a fatal defect that will affect the validity of the will.10 Art. 808 of the New Civil Code mentioned the process that must be followed in the case the testator is blind: Art. 808- If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged.11

One might say that the civil code commission thought of everything when they conjured up the New Civil Coe but they did not really think of everything. In the case of a testator who is both deafmute and blind, he may not make a will unless the contents thereof4

may properly be communicated to him in accordance to the legal requirements.12 B. Forms of Wills We now go to the execution of wills and its form and solemnities. If a person dies, how do we know whether or not the document he executed was in fact a will or last testament? What if the document is not entitled last will or testament, could it still be treated as a will? Philippine e-Legal Forum has courteously answered this question: Yes, in the same case of Dy Yieng Sangio v. Reyes, the document is entitled Kasulatan sa pag-aalis ng Mana. The Document, although it may initially come across as a mere disinheritance instrument, conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed By the hand of the testator himself. An intent to dispose mortis causa (upon death) can be clearly deduce the terms of the instrument.13 It is clear that what is important in will is that whether or not it is such depends on the intention of the deposition and not the form of the instrument, the legal forms used or the title by which the decedent gave the instrument. If A were to make a document entitling it as Last will and testament and he meant that as a joke, then such document

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is not a will but a mere scrap of paper which will have no effect of conveyance after his death. 1. Holographic Wills A Holographic Will is that which must be written, dated, and signed by the hand of the testator himself to no other form, and may be made in or out of the Philippines and need not be witnessed. 14 Conveyance must be known to the testator.15There is no witness, no marginal signatures, no notarization and acknowledgment needed or prescribed by law to make this a valid will. It is unlikely to be influenced by fraud or undue influence.16 The will must also be dated and it is important that at the time it was executed, holographic wills are allowed. The time of death is immaterial.17 The problem in holographic wills will arise later on and will be discussed when we reach to the topic of its probate especially when it is contested and the necessary quantum of evidence required by law. It should be noted by the reader that though however I mentioned that it is unlikely for the testator to be influenced by fraud or undue influence, there is, at the same time, no way for us to determine indeed he wasnt. I presume that the author had in mind that because it is done privately, the author assumed so but I cant help but be skeptical since it is done privately and without a witness, we can never be too sure in black and white that, that is the case.6

2. Notarial Wills Notarial Wills are those which must be acknowledged before a notary public by the testator and witnesses.18 As compared to Holographic Wills, Notarial Wills must strictly comply with the requirements set forth in the law to be able to make it a valid will. Notarial Wills are stricter when it comes to its form and a fatal defect could render the will void. In one case, the first page of a will bore the signatures of the three instrumental witnesses but not the signature of the testator and so the court considered it as a fatal defect and hence, rendered the will invalid. It is good to note that lack of documentary stamp is not a fatal defect in a notarial will.19 Notarial wills must strictly comply with Art. 805 in the New Civil Code: Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. xxx. The attestation shall state the number of pages used upon which the will is written, and the fact that the7

testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.20 In paragraph 3, of the same provision, the attestation clause is one of the essential requirements to a valid Notarial Will. The purpose of the attestion clause is to preserve in permanent form a record of the facts attending the execution of the will so that in case of failure of the memory of the subscribing witnesses, or any other casualty, they may still be proved to minimize the commission of fraud and undue influence.21 In notarial wills, there is in its favor the presumption of regularity however, such, though notarized, is not a public instrument. This is evident in such fact that unlike in the case of public instruments, The notary public shall not be required to retain a copy of the will or file another with the office of the clerk of court.22 Art. 809 in the Civil Code talks about what substantial compliance is and that as long as the purpose sought by the attestation clause is obtained, the same should be considered valid. The law talks about the defests and imperfections in the form of attestation, or in the language used therein. The law does not require

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the attesting witness should sign at the end of the will or at the end of the attestation clause; the defects of substance can be cured only be evidence within the will itself-not by evidence aliunde (extrinsic evidence).23 Justice J.B.L. Reyes has this to say: I submit that the rule here is so broad that no matter how imperfect the attestation clause happens to be the same should be cured by evidence aliunde. It thus renders the attestation of no value in protecting against fraud or really defective execution.24

3. Advantages and Disadvantages of Holographic and Notarial Wills One might ask himself, which is better as to execution and effect? In my opinion, they both have the same effect which is the conveyance of properties upon the death of the testator but the issue would arise when it comes already to its authenticity and medium of proof especially when it comes to lose. In the case of Holographic Wills, the only guaranty of the authenticity of the will is the handwriting itself.25 In Notarial wills, the testimony of the subscribing witnesses and notary is guarantee to its authenticity. The latter case is more credible because it is harder to convince people to deliberately lie and they can also testify as to the actual making of the will. While in Holographic Wills, by their very nature of being executed privately, the most9

witness can testify to is the handwriting of the said will, that is if they saw it; The handwriting cant be verified in case of loss.26 Although a Holographic will is more convenient to do and that anyone who is literate can easily execute one, it was dubbed as particularly dangerous in case of persons who have written very little. The validity of such wills depends exclusively on the authenticity of the handwriting, and if writing standards are not procurable, or not contemporaneous, the courts are left to the mercy of the mendacity of the witnesses.27 III.Probate Probate is the act or process of proving before a competent court the due execution of an instrument purported to be the last will and testament of the deceased person for its allowance by the said court, that is, for its official recognition and carrying out of its provisions insofar as they are in accordance with the law.28 Although generally probate is done after the death of the testator, probate during the lifetime of the testator is allowed. It begs the question, what if the will was probated during the lifetime of the testator and shortly before his death, he changes his mind but does not have the time to change his will because of his illness or other unfortunate circumstances? It would somewhat be unfair to the testator because you can never know the future that could ultimately change your mind. In this particular case, I10

submit that the law requires the testator to closely guard his rights regardless of the knowledge of impending death or not. A. Importance of Probate There is a need to probate wills because until it is probated, it cannot be used or given in evidence as the foundation of a right or title to real or personal property.29 Any executor, devisee, or legatee named in a will or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed.30 Personal notice upon the heirs is a matter of procedural convenience and not a jurisdictional requirement;31 hence the court does not lose its jurisdiction if personal notice was not given. The issue arises here when it comes to lost or destroyed holographic wills. Bare testimony of the witnesses who have seen and or read the will is not enough. For it to be opposed, the will itself (or at least a photographic, photostatic or carbon copy) must be presented whereby the authenticity of the handwriting of the testator may be exhibited and tested before the probate court.32 In one case, the Supreme Court explained that the law regards the document itself as material proof of authenticity, and as its own safeguard, since it could be any time, be demonstrated to be or not to be-in the hand of the testator himself.33 The witnesses presented may have been mistaken due to human memory and that is why it is permitted that the11

oppositor can also present witnesses to contest such handwriting as not belonging to the testator. When the will itself is not submitted, there is no guarantee to the testators handwriting on the said will. The court would be left to decide based on air or testimonies, fabricated or not, the witnesses of the opposing sides. B. Interpretation of wills Art. 790 of the New Civil Code of the Philippines states that, the words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained. Ordinary words have their ordinary meaning except if there is a clear intention that another meaning was used-provided that other meaning can be determined and the reason for such exception is the Supreme law for interpretation.34

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court interprets the provision of the will especially the proper attestation clause which is necessary by the law, case law has determined that while precision on language in drafting an attestation clause is desirable, it is sufficient that from the language employed it can be reasonably be deduced that the attestation clause fulfill the requirement of the law.35 It should be the language best known to the testator that is used to determine, from the tenor of his writings, his intention as to the time he executed the will. This is again more or less an issue when it comes to holographic wills because usually the

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testator does the will on his own without the help of a notary public or other people. 1. Importance of Authentication Authentication is necessary when there is any insertion,

cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature.36 As to the question, what constitutes a signature? Case law has this as an answer: A complete signature is not essential to the validity of the will. Perhaps to provide for a greater authenticity, what should be found at the end of the will is the testators customary signature. However, since the law does not require his full signature, the initials or thumbprint of the testator may be deemed sufficient to comply with this requirement.37 This is another issue that complicates more the probate of a holographic will. The law should prescribe more requirements because we can never really tell if the initials written were not done by someone else or that the testator was not forced to put his thumbmark there or that the insertion, cancellation, erasure of alteration done in his holographic will and his thumbmark were not placed there after his death. It can easily be fabricated or forged by anyone and it would not need a rocket scientist to do it. Someone with an evil desire for the properties of the testator can do it without much mental effort.13

The court can basically disregard the provisions which were altered or inserted if it was not properly authenticated however, an exception is when the changes effect the essence of the will of the testator expressed in the document, then the whole will is

invalidated.38 C.Scrutinizing the Rules on Evidence in the probate of wills and in case of loss In case of lost or destroyed will, it shall not be proved unless the execution and validity of the same was already established and the will is proved to have been in existence at the time of the death if the testator or was destroyed without his knowledge during his lifetime, unless the provisions are clearly and distinctly proved by at least (2) credible witnesses.39 This rule does not state whether or not this applies both to holographic and notarial will. In notarial wills, it is understandable to have the witnesses because there are witnesses to the execution of the same and plus there is a notary public. But how about holographic wills? Two witnesses can easily connive as to its contents.

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1. The three-witness rule In the probate of holographic will, one witness who knows the handwriting and signature of the testator is necessary to prove it but in case if it were contested, at least three of such witnesses shall be required.40 This rule has been contested by so many legal authorities, one of which is Justice JBL Reyes who asked why the courts discretion, in weighing the proof, be limited by a quantitative minimum of proof. It should be that the court must be left to determine the weight of the evidence since one witness can be very convincing. 41 The Supreme Court has made the requirement mandatory in case of a probate of a holographic will that at least three (3) witnesses explicitly declare that the signature in the will is the genuine signature of the testator in view of the use of the word shall which commonly denotes an imperative obligation.42 I cannot help but subscribe to the view of Justice Reyes. I do understand that it is harder for three(3) people to lie but wouldnt it be unfair that the voice of one honest man be silenced by the voices of others just because they are more in number? The court cannot even use its discretion that even though this man is more honest in trial and more straightforward, his testimony cannot be given much weight because the court is mandated by numbers. For what is the purpose of the qualifications and disqualification of a witness set forth in the New

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Civil Code and the expert witness that can be resorted to in Art. 811 of the New Civil Code in the absence of a competent witness, if the case would only be majority wins anyway? 2. Parol Evidence Rule Parol Evidence has been defined as been defines as

substantive common law rule in contract cases that prevents a party to a written contract from presenting evidence that contradicts or adds to the written terms of the contract that appears to be whole.43 It is generally prohibited from being admitted as evidence in court based on Rule 130 Sec. 9 of the Revised Rules of Court, if all the terms and conditions of the agreement have been reduced into writing. In Steele V. Price, 5 B. Mon (44 Ky.) 58 however, The testator never made another will and the missing will was found on his death. There was no revocation of the old will in this case. The court ruled that although a will was never found, still parol evidence may be introduced to prove its contents because the destruction of the will is presumed to be not authorized considering the testator lost it and yet informed his relatives he will make another one.44

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3. Qualifications of witnesses A credible witness must have all the qualifications specified by the New Civil Code. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in Article 805 of the same code.45 It is submitted by legal authority that Art. 805 Par. 3 of the New Civil Code states only that the witnesses are there to attest that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction. It does not state that the witnesses necessarily have to know the language in which the attestation has been written but is sufficient that the same be interpreted to him.46 Those who may not be witnesses are prescribed in Art. 821 of the Civil code which says that, he following are disqualified from being witnesses to a will: (1) Any person not domiciled in the Philippines; (2) Those who have been convicted of falsification of a document, perjury or false testimony.47 While the instrumental witness to a will shows to have all the qualifications in Art. 820 but none of the disqualifications of Art. 821 is presumed as trustworthy and reliable, unless the contrary is established.48 Art. 823 talks about persons that are incapacitated to inherit but not incapacitated:17

Art. 823- If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent wit nesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given.49 An exception to this is if a witness is a compulsory heir such as a spouse, parent or child, said heir is still entitled to the legitime,50 otherwise this would be an easy way to sort of disinherit him without any justifiable cause.51 These rules in my opinion, where put to minimize the temptation of fraud and collusion among witnesses who may have an evil intention in the estate of the deceased. IV.Conflicts of Law Rules-Rule Governing Extrinsic and Intrinsic Validity There are different set of laws that govern the extrinsic and intrinsic validity of the will depending upon the nationality of the testator and the place where he executed the said will. The law that governs the validity if the will is the law of the country in which they are executed18

following the general rule of lex loci celebracionis but the intrinsic validity of the testamentary provisions is governed by the national law of the testator, regardless of the law of the place of execution or of the domicile of the testator, or of our law, the location and kind of property disposed of, and of the express wishes to the contrary of the testator.52 The only thing I can critic here is that it does not state here and in the New Civil Code, Art. 16 and 17, whether or not the national law of the decedent at the time of the making of the will governs or his national law during his death. There can be times that a testator could have made his will and then later has a change of nationality. International Law has prescribed that it is the law of the state in which the deceased at the time of his death was habitually resident, if he was a national of the state or in other cases, the law of the state of which at the time of his death the deceased was a national, unless at the time the deceased was more closely connected with another state, in which case the law of that latter state applies.53 I think it should not be his death but his nationality at the time of him making the will because it is the law that he had in mind when making it. If he had a change of nationality, the testator would have also changed the terms of his will accordingly to the law of his new country to adhere to such law but he didnt so it is presumed the testator would have preferred it that other

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way. The purpose of the law is not clearly established as why the nationality at the time of death governs when death forever silences the testator from rebutting and changing his own will. What he did when he was still alive should be the rule that governs because it is the time he was fully conscious of his acts. A. Wills proved outside the Philippines Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed and recorded by the proper RTC in the Philippines.54 If it appears at the hearing that the will should be allowed in the Philippines, the court shall allow it and a certificate of its allowance, signed by the judge, and attested by the seal of the court to which shall be attached a copy of the will, shall be filed and recorded by the clerk and the will shall have the effect as if originally proved in such court.55 This is for the purpose of expediency and comity wherein we respect the judgment of foreign courts. This way, we do not do any injustice towards the litigants who seek the judicial machinery of our country expecting to achieve justice only to have its delivery stalled by technicalities. The foreign judgment must be proven as a public document of a written official act or record of an act of an official body or tribunal of a foreign country. The offeror must submit an attestation issued by the proper foreign official having legal custody of the original judgment20

that the copy is a faithful reproduction of the original, which attestation must be authenticated by a Philippine Consular officer having jurisdiction in that country.56 1. Quantum of Evidence Case law has prescribed the necessary quantum of evidence necessary for the reprobate of allowance of wills which have been probated outside the Philippines. These are:a) The due execution of the will in accordance with

the foreign law; b) The testator has his domicile in the foreign country and not in the Philippines; c) The will has been admitted to probate in such country; d) The fact that the foreign tribunal is a probate court; and e) The law of the foreign country on procedure and allowance of wills.57 These being the quantum of evidence necessary, it is safe to say that they are the minimum required and without such or if there are lacking, a case cannot be reprobated in our country.

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2. Proof of foreign law It is a no-brainer that the courts of the Republic of the Philippines cannot take judicial notice of foreign law. In the absence of proof of the contrary, it is presumed that the foreign laws on the formalities of the will are the same as prescribed under our law.58 The Revised Rules of Court required the necessary proof of the foreign law are the official publication of the law and a copy of the law attested by the officer having the legal custody of the record, or by his deputy if record not kept in the Philippines which must be accompanied w/ a CERTIFICATE that such officer has the custody.59 B. Rule governing joint wills Joint wills are not valid in our country when it is made by Filipinos. Due to public policy, the state frowns upon its execution because there might be one party who has a stronger moral influence over the other party and it would prejudice one while benefits the other. In the Civil Code, it does not define what a join will is but merely prohibits two or more persons from making a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of the third person.60 Joint wills are now generally regarded as valid in American Law provided that the instrument is not dependent upon the death of the survivor for the effectiveness as the will the first to die.61 The Philippines should be able to allow joint wills provided that the22

courts will protect the rights of those that are likely prejudiced. Anyway, if American Law can do it why cant we right? 1. Mutual Wills Mutual wills are those separate wills of two persons which are reciprocal in their provisions giving the separate property of each testator to the other.62 If X makes a will making Y his heir and vice versa. The effect is that the survivor shall succeed the estate of the first one to die. Mutual wills are executed with a common intention on the part of the testators irrespective of whether there is a contract between them, although the contractual element is often involved.63 2. Joint wills prohibited A mutual or reciprocal will is not prohibited by law. What is prohibited is a joint will and of course, a joint and mutual will which is subject to attack wherever and whenever offered as an instrument. 64 It is not only prohibited if executed here but also prohibited when it is executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed.65 In an old case of the Supreme Court, a couple executed a joint will. In upholding it as a void will stated: The provision of article 669 of the Civil Code prohibiting23

the execution of a will by two or more persons conjointly or in the same instrument either for their reciprocal benefit or for the benefit of a third person, is not unwise and is not against public policy. The reason for this provision, especially as regards husbands and wife is that when a will is made jointly or in the same instrument, the spouse who is more aggressive, stronger in will or character and dominant is liable to dictate the terms of the will for his or her own benefit or for that of third persons whom he or she desires to favor. And, where the will is not only joint but reciprocal, either one of the spouses who may happen to be unscrupulous, wicked, faithless, or desperate, knowing as he or she does the terms of the will whereby the whole property of the spouses both conjugal and paraphernal goes to the survivor, may be tempted to kill or dispose of the other.66

V. Revocation of Wills Revocation has been defined as an act of the mind terminating the potential capacity of the will to operate at the death of the testator, manifested by the same outward and visible act or sign, symbolic thereof.67 The testator must have testamentary capacity at

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the time of the revocation. The same degree of mental capacity is necessary to revoke the will as to make one.68 Going back to the Conflict of Laws rule, Art. 829 of the New Civil Code states the governing law in case of revocation of a will: Art. 829-A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code.69

It is curious that in this case, the law speaks of the place of the making and not the place of the revocation. This apparently disregards the rule of lex loci celebrationis.70 The only gray area I could think of in revocation of wills is the intent and capacity of the testator during the time of the revocation. Of course, the law provides that every person is of sound mind, in the absence of proof of the contrary.71 Presumption of sound mind of the testator will be discussed in a later sub-topic.

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A. Revocation by implication of law The New Civil Code discusses about how wills may be revoked: Art. 830. No will shall be revoked except in the following cases: (1) By implication of law.xxx. This kind of revocation is produced by operation of law when certain acts or events take place after the will has been made, rendering it void or useless either the whole will or certain

testamentary disposition therein. This allows the testator to change his mind after he executed the will.72 B. Revocation by subsequent will or codicil In the same Article, it mentions another way to revoke a will: (2) By some will, codicil, or other writing executed as provided in case of wills. A codicil is a supplement or addition to a will, made after the execution of a will and annexed to be taken as part thereof, by which any disposition made in the original will is explained, added or altered.73 In order that the codicil may be effective it shall be executed as in the case of the will.74 Expressly declaring in a subsequent will or codicil that the testator revokes his previous will is one way to revoke it.

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2. Doctrine of Relative Revocation Subsequent wills which do not evoke the previous ones in an express manner, annul only such dispositions in the prior wills as are consistent with or contrary to those contained in the later wills.75 This is called the Doctrine of Relative Revocation which Wikipedia defines as: Under this doctrine, the court disregards a revocation that was based on a mistake of law on the part of the testator as to the effect of the revocation. For example, if a testator mistakenly believes that an earlier will can be revived by the revocation of a later will, the court will ignore the later revocation if the later will comes closer to fulfilling the testator's intent than not having a will at all. The doctrine also applies when a testator executes a second, or new will and revokes his old will under the (mistaken) belief that the new will would be valid. However, for some reason the new will is not valid and a court may apply the doctrine to reinstate and probate the old will, as the court holds that the testator would prefer the old will to intestate succession.76 3. Republication The execution of a codicil referring to a previous is called, Republication. The republication is express or implied. It is express when there has been an actual re-execution of it; implied when, for example, the testator by a codicil executed according to the statute of27

frauds, reciting that he had made his will, added, "I hereby ratify and confirm my said will, except in the alterations after mentioned."77 The effects of republication by virtue of a codicil are: the codicil revives the previous will, the old will is republished as of the date of the codicil makes it speak, as if it were, from the new and later date, a will republished by a codicil is governed by a statute enacted subsequent to the execution of the will, but which was operative when the codicil was executed.78 Republication is different from Revival. The former is an act of the testator while the latter is the one that takes place by operation of law. Revival has been defined as the restoration or reestablishment of revoked will or revoked provisions thereof, the effectiveness, by virtue of legal provisions.79 The problem with republication is that when someone makes a Notarial Will, without an attestation clause and then later on made a private instrument to the effect that he was ratifying said will there would be no republication since there would be a reproduction of all he provisions. It was discussed by A.J. E. Paras in his book that, A testator which revoked will by cutting off his signature but later on changes his mind and pasted it back, the will remains revoked for failure to comply with the legal requirements for republication.80

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The code is silent however as to how to rule on such situation where the second will executed was not valid would it revive the first will? Art. 837 merely says, If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will does not revive the first will, which can be revived only by another will or codicil.81 It talks about if the second will is revoked but not if the second will is not valid. The Supreme Court has settled this issue in one case where the testator died leaving two wills. The later one expressly declares that it revokes the earlier one. When the testator died, his widow and heirs filed a petition to probate the later will but the court did not allow the said will. The widows and heirs again petitioned for the probate of the earlier will. The court ruled that a subsequent will containing a clause revoking a previous will, having been disallowed for the reason that it was not executed in conformity with the provisions of the law. The will cannot produce the effects of annulling the previous will, inasmuch as said revoking clause is void.82 The court continues on to discuss on the same case: By virtue of the doctrine of dependent relative revocation, the earlier will can still be admitted to probate because of the principle predicated that the testator did not intend to die intestate. And this intention is clearly manifest where he29

executed two wills on two different occasions and instituted his wife as his universal heir.83 C. Revocation by overt act Art. 830 of the New Civil Code states the third way of revoking a will which is: Art. 830. xxx. (3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. In Art. 830 of the New Civil Code, it basically narrates how a will can be revoked. To sum it up, it is the intention of the testator to revoke the will that is controlling. Mere burning, tearing, cancelling or obliterating the will without the intention of the testator to revoke it does not render the will inoperative after the death of the testator especially in cases where there is fraud or the burning, tearing,30

cancelling or obliterating of such was done through accident. The same article allows a third person to do so with the same effects provided that it is with the express direction of the testator. I, however, observe that the law does not prescribe the degree of burning, tearing, or cancelling needed to say that the will has been revoked. If I were the testator and I burned merely about 20% of the will and the rest of the provisions are still readable, would it constitute a revocation when such is presented in court? Or if I tore about a quarter only of the page, would it still have an effect after my death? I guess it all goes down to the intention of the testator when they did such act and it is up to the court to determine it during the probate. Former Associate Justice Edgardo L. Paras discussed that in order for revocation by overt act to take place there must be: an overt act specified by law, a completion of at least the subjective phase of the overt act, animus revocandi, capacity to make a will, and done by testator himself or third person with his express direction.84 When it comes to the act of burning, it is sufficient that even the small part of the instrument itself be burned even though the entire writing itself be untouched. With the act of tearing, which includes cutting, a slight tear is sufficient. The act of obliteration itself means renders the word illegible or cancellation-drawing a line across the text-but the words remain legible.85

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VI. Presumption of Sound Mind I deemed it relevant to discuss this in a separate sub-topic because this is essential to the validity of a will and if the testator was not of sound mind at the time that he executed his will, this renders his will void. The law presumes that every person is of sound mind, the absence of proof to the contrary.86 This is enunciated in one case of the Supreme Court where the testator, Paguio, for some fourteen years suffered paralysis on the left side of his body and the oppositors of the probate alleged that he was not in full enjoyment and use of his mental faculties and was without the mental capacity necessary to execute a valid will. The Supreme Court disagreed and said that, The rule of law relating to the presumption of mental soundness is well established, and the testator in the case at bar was never adjudged insane by a court of competent jurisdiction. This presumption continues, and it is therefore incumbent upon the opponents to overcome this legal presumption by proper evidence.87 In one case, the oppositors claim that the testatrix was employed with undue influence to exert the will because she lived in the house of the designated couple-heirs in the will several years before the execution of the same. The Supreme Court did not buy the reasoning but instead held that: The exercise of improper pressure and undue influence32

must be supported by substantial evidence and must be of a kind that would overpower and subjugate the mind of the testatrix as to destroy her free agency and make her express the will of another rather than her own (Coso v. Deza, 42 0. G. 596). The burden is on the person challenging the will that such influence was exerted at the time of its execution, a matter which here was not done, for the evidence presented not only is insufficient but was disproved by the testimony of the instrumental witnesses.88 VII. Legal Development through laws and jurisprudence In 1977, President Ferdinand Marcos promulgated the

Presidential Decree No. 1083, also known as the Code of Muslim Personal Laws of the Philippines. It is a law that recognizes the legal system of the Muslims in the Philippines as part of the law of the land and seeks to make Islamic institutions more effective, codifies Muslim personal laws, and provides for an effective administration and enforcement of Muslim personal laws among Muslims.89 This is an extraordinary decree because it recognizes the personal law of the Muslim Citizens of this country as well as developed a different type of judiciary exclusively for the determination and enforcement of rights arising out of its provisions. Together with other salient features of the decree are the provisions on testamentary succession applicable to the Moro population only.9033

The Supreme Court has also been busy promulgating decisions on cases regarding testamentary succession. More or less, the rules on testamentary succession and the case laws of the Supreme Court has been consistent and no major or substantial changes to the law or a reversal of any of their previous decisions has been done by the Supreme Court. VIII. Conclusion The rules governing Testamentary Succession are very long and comprehensive but the legislature cannot be expected to have thought of every possible situation and was able to safeguard it through provisions in the law and rules of court. Based on my findings above I conclude that the laws are not adequate enough to address those problems and that there are still loopholes in the law that could lead to unfairness and injustice on the part of the testator. For example, in Holographic Wills, the rules have been so liberal and lax that I believe there is a need for more safeguard to protect the rights of testators who are more likely uneducated and illiterate and are subject to the manipulation or undue influence of surrounding circumstances and people. I believe that there is a need to put at least a number of witnesses with the same number as required as instrumental witnesses in Notarial Wills because there should be more proof needed of the due execution of the will other than the34

handwriting itself. I suggest of the same number because I subscribe to the idea that it is hard for three witnesses to connive or be convinced to lie and be consistent in the court. With regards to the instrinsic validity of wills, I also recommend that it should be the National Law of the testator at the time of the execution of the will and not at the death of the descendent which should be stated in the law itself. I believe that the law which the testator had in mind at the time of the making of the will should be preferred. For the signature of the witness, there is a need to change the jurisprudence of allowing not just the initial or the thumbprint of the testator but it has to be the full name and the law must be amended to settle that issue. I already explained that such easy requirement would make it too easy for malicious people to forge the signature. Lastly, I think the three-witness rule in case of loss should be made discretionary on the courts in case only if the witnesses presented by the opposing parties are all convincing and credible. Quantitative solution should come as a last option and the courts should be left to decide liberally as they should. Testamentary Succession is a very broad subject and my paper cant possibly discuss all that there is to know about the subject. It is significant to have this kind of basic knowledge in the law in order for35

us to be able to safeguard our rights at the time when we are about to pass on.

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ENDNOTES

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1

Edgardo Paras, Civil Code Of The Philippines Annotated (Manila, Philippines: Rex Printing Company Inc., 1999) p. 1. 2 http://www.justice.gouv.qc.ca 3 Riera vs. Palmaroli, 40 Phil. 105 (1919). 4 Paras, op. cit. p. 4. 5 Art. 791, New Civil Code of the Philippines. 6 Art. 783, New Civil Code of the Philippines. 7 Paras, op. cit. p. 39-40. 8 Lasam v. Lasam, 58 O.G. 7232, March 29, 1962. 9 Art. 807, New Civil Code of the Philippines. 10 Mascarin vs. Angeles, L-1323, June 30, 1948. 11 Art. 808, New Civil Code of the Philippines. 12 Paras, op. cit. p. 89. 13 http://jlp-law.com 14 Art. 810, New Civil Code of the Philippines. 15 Ibid., Art. 804. 16 Alicia Sempio-Diy, Succession in a nutshell (Quezon City:Joer Printing Services, 2003) p. 11. 17 Paras, op. cit. p. 97. 18 Seigfried Mison, Wills and Succession: Explained and simplified (Quezon City:Rex Printing Company Inc., 2005) p.46. 19 Gabucan vs. Hon. Manta, L-51546, Jan 28,1980. 20 Art. 808, New Civil Code of the Philippines. 21 Paras, op. cit. p. 83. 22 Art. 806, New Civil Code of the Philippines. 23 Paras, op. cit. p. 90-91. 24 Lawyers Journal, Nov. 30, 1960, p. 566. 25 Hector De Leon, Comments and cases on succession (Manila:Rex Printing Company Inc., 2003) p. 149. 26 Ibid. 27 Paras, op. cit. p. 93-94. 28 Ibid. p. 192. 29 Ibid. p. 193. 30 Sec. 1 Rule 76, Revised Rules of Court. 31 Suntay vs. Suntay, 95 Phil. 500 (1954). 32 De Leon, op. cit. p. 149. 33 Gan vs. Yap, 104 Phil 509 (1960). 34 Solla vs. Azcueta, 49 Phil. 333 (1912). 35 Sebastian vs. Panganiban, 59 Phil. 653 (1934). 36 Art. 814, New Civil Code of the Philippines. 37 Lopez vs. Liboro, 81 Phil. 429 (1948). 38 Kalaw vs. Relova, G.R. No. L-40207, Sept. 28, 1984. 39 Sec. 6 Rule 76. Revised Rules of Court. 40 Art. 811, New Civil Code. 41 De Leon, op. cit. p. 148-150. 42 Codoy vs. Calugay, 312 SCRA 333 (1999). 43 http://www.wikipedia.com. 44 Paras, op. cit. p. 124. 45 Art. 820, New Civil Code of the Philippines. 46 Ibid. p. 109. 47 Art. 821, New Civil Code of the Philippines. 48 Paras, p. 110. 49 Art. 823, New Civil Code of the Philippines. 50 Art. 915, New Civil Code of the Philippines. 51 Paras, op. cit. p. 112. 52 Bellis vs. Bellis, 20 SCRA 358 (1967). 53 Art. 3 Section 1 and 3 Hague Convention, August 1, 1989. 54 Sec. 1 Rule 77, Revised Rules of Court. 55 Ibid. Sec. 3.

5657 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90

Pacific Asia Overseas v. NLRC, 161 SCRA 122 (1988).

Vda. De Perez vs. Toleta, 232 SCRA 722 (1994). Miciano vs. Bruno, 50 Phil. 867 (1924). Rule 130 Sec. 46, Revised Rules of Court. Art. 818, New Civil Code of the Philippines. De Leon, op. cit. p. 158. De Leon, op. cit. p. 157. Ibid. De Leon, op. cit. p. 158. Art. 819, New Civil Code of the Philippines. Bilbao vs. Bilbao, G.R. No. L-2200, August 2, 1950. De Leon, op. Cit. p.171-172. Ibid. Art. 829, New Civil Code of the Philippines. Paras, p. 118. Art. 800, New Civil Code of the Philippines. Paras, op. cit. p. 119. Art. 825, New Civil Code of the Philippines. Ibid. Art. 826. Ibid. Art. 831. http://www.wikipedia.com. http://legal-dictionary.thefreedictionary.com. Paras, p. 131-132. Ibid. p. 134. Paras, 132-133. Art. 837, New Civil Code of the Philippines. Molo vs. Molo, 90 Phil 37 (1951). Ibid. Paras, op. cit. p. 120-126. Ibid. Art. 800, New Civil Code of the Philippines. Bagtas v. Paguio, G.R. No. L-6802, March 14, 1912. Teotico vs. Del Val, G.R. No. L-18753, March 26, 1965. http://en.wikipilipinas.org Title II, P.D. 1083.